Decision #156/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 20, 2001, at the request of the claimant's union representative. The Panel discussed this appeal on November 20, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

While performing modified duties on August 15, 2000, the claimant reported right arm tendonitis which he stated came on gradually as a result of "doing the same thing over and over again." At the time of the alleged accident, the claimant was recovering from a work related accident, which occurred on May 4, 2000 when he lacerated the palmar aspect of his DIP joint on his left 3rd finger. He was restricted to modified duties using only his dominant right hand.

On September 15, 2000, a Workers Compensation Board (WCB) adjudicator spoke with the claimant and the following information was obtained:

  • the onset of his right hand symptoms started about one month prior to his left hand injury of May 4, 2000. The claimant did not report it at the time, nor did he seek medical attention because he did not know the severity of the injury.
  • the claimant indicated that he worked regular duties with no complaints right up to his May 4th injury. His regular duties consisted of hanging and packing birds as well as cutting and packing drums. The onset of his symptoms occurred when hanging birds.
  • during the time he was off work from May 4th until his return to work on August 2, 2000, his right arm was sore and it remained sore throughout the entire time he was off work.
  • the claimant indicated that when he returned to light duty work on August 2, 2000 he was lifting and dropping packing boxes down a chute. He would pick up a box from a pallet and lift it to approximately chest level, and he would then drop it down a chute. He would pick up one box at a time. He only worked a couple of hours and stated his right hand became sore. The claimant indicated that although he went off work on August 2nd he did not attend a doctor until August 15th because he could not get an appointment.

In a sworn statement dated September 27, 2000, the claimant, stated, in part, that "there was no one specific day - I can not tell you exactly when I started to have problems with my right elbow after my finger injury. This started gradually sometime after my surgery and the only reason was from my left hand being immobilized."

In an October 10, 2000 letter, the treating physician indicated that the claimant had been seen at the office on August 15, 2000 in regard to his right arm pain. The claimant reported that he had had the pain for a couple of weeks and that it had come on with his return to work in early August, primarily due to using his right arm only. This was the first instance where the claimant complained about the pain. The physician indicated that the pain was in the right forearm extending into the wrist. The diagnosis rendered was flexor tendonitis of the forearm. An additional diagnosis was also added, namely "flexor muscle strain".

Primary adjudication referred the case to a WCB medical advisor on October 18, 2000. As a brief background, the adjudicator noted that the claimant returned to work duties on August 3, 2000 which involved paperwork and writing from 8 to 11 a.m. On August 8, 2000, the claimant was assigned to a warm area of the plant dropping empty boxes down a chute from 7 to 11 a.m. The claimant noted pain in his right elbow by the end of his August 8, 2000 shift. He suggested that the onset of his right elbow pain resulted from overuse of the right arm because of his inability to use his left hand. In responding to 4 questions outlined by primary adjudication, the medical advisor indicated the following:

  • on a balance of probabilities, the modified duties performed by the claimant were not likely to cause the symptoms in his right forearm.
  • the claimant's right arm complaints are not likely secondary to the original compensable injury of May 4, 2000. The claimant was right hand dominant and the modified duties were not sufficient to produce the complaints of pain in his right forearm.
  • with respect to a diagnosis for the right arm, the medical advisor indicated that the claimant may have a right forearm strain but it was not necessarily from a work related activity.

In a decision dated October 31, 2000, primary adjudication determined that it was unable to accept the claimant's right elbow/forearm complaints as either related to his left hand injury or as a new workplace injury. In making its decision, primary adjudication pointed out the following:

  • there was a significant inconsistency in the claimant's reporting of his right elbow/forearm injury. Reference was made to the statement made by the claimant to a WCB adjudicator on September 15, 2000 and to his sworn statement of September 27, 2000.
  • during the course of medical treatment of his left hand, the claimant never mentioned his right arm complaints to his attending physician until August 15, 2000.
  • the opinion of the WCB medical advisor that the immobilization of the claimant's left arm would not have resulted in the symptoms that the claimant began to experience with his "dominant" right arm.

On December 12, 2000, the claimant's union representative appealed the above decision to Review Office. The union representative presented argument that the claimant's work, prior to and following his laceration, had, on a balance of probabilities, caused him to suffer a repetitive strain injury.

In a decision dated March 9, 2001, Review Office upheld primary adjudication's decision that the WCB would not accept responsibility for the claimant's right elbow/arm condition as either a new accident or being related to the claimant's left hand injury of May 4, 2000. Review Office noted that the claimant admitted that he was not aware of any accident occurring to his right forearm/elbow and thus it confirmed this is not a new accident. There was confusion on file with respect to the claimant's changing his version of events. It was not known whether the claimant's condition came on a month prior to his May 4, 2000 left hand injury or whether it came on gradually following the surgery to his left hand.

Review Office was not satisfied that there was sufficient evidence to relate the claimant's right elbow/arm condition to any work duties or that this condition arose out of and in the course of his duties. Review Office did not believe that an overuse syndrome had occurred to produce such a diagnosis. On May 14, 2001, the claimant's union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

    "Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises out of, and in the course of, employment, and
  3. an occupational disease

and as a result of which a worker is injured."

As a consequence of his left-hand injury, the claimant remained off work from May 4th, 2000 until his return to work on August 2nd, 2000. According to a telephone conversation with a WCB adjudicator, the claimant indicated that during the whole of the period of time in which he was off work his right arm was persistently sore. We note, however, that the first report by the claimant documenting his right arm difficulties was not until the middle of August after his commencing the light duties.

We find the evidence as a whole does not, on a balance of probabilities, support the claimant's contention that his right arm difficulties are causally linked to the light or modified duties provided by the employer. Accordingly, we further find that there has not been an accident as defined by the Act. Therefore the claim is not acceptable and the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of December, 2001

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